Navette Broadcasting & Entertainment Company Ltd v The Utilities Regulation and Competition Authority

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 04 March 2020
• Neutral Citation: BS 2020 CA 26
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCivApp. No. 117 of 2019
• Date: 04 March 2020

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCivApp. No. 117 of 2019

Between

Navette Broadcasting & Entertainment Company Limited

Intended Appellant

and

The Utilities Regulation and Competition Authority

Intended Respondent

APPEARANCES:

Mr. Kahlil Parker, Counsel for the Intended Appellant

Mr. Sean Moree, Counsel for the Intended Respondent

AWH Fund Limited (In Compulsory Liquidation) v. ZCM Asset Holding Company (Bermuda) Limted [2014] 2 BHS J. No. 5 mentioned

Bethell v. Barnett and others [2011] 1 BHS J. No. 64 mentioned

Casimir v. Shillingford and Pinard (1967) 10 WIR 269 distinguished

CM Van Stillevoldt BV v. El Carriers Inc [1983] 1 All ER 69 mentioned

Colebrooke v. National Insurance Board [2012] 2 BHS J. No. 41 distinguished

Derek Guise Turner v. Edward Turner [2013] 2 BHS J. No. 52 applied

Gatti v. Shoesmith [1939] 3 All ER 916 applied

Johnson v. Statoil South Riding Point LLC [2018] 1 BHS J. No. 133 mentioned

Norwich and Peterborough Building Society v. Steed [1991] 2 All ER 800 mentioned

Palata Investments Ltd v. Burt & Sinfield Ltd [1985] 2 All ER 517 mentioned

Ratnam v. Cumarasamy [1965] 1 WLR 8 considered

Rawashdeh v. Lane (1988) 40 EG 109 mentioned

Smith v. Cosworth Casting Processes Ltd [1997] 4 All ER 840 considered

Smith v. Coalition to Protect Clifton Bay [2017] 2 BHS J. No. 26 mentioned

Sumner Point Properties Limited v. Cummings [2015] 3 BHS J. No. 35 mentioned

Civil appeal — Application for an extension of time within which to appeal — Restriction on interlocutory civil appeals — Factors to be considered on an extension of time application — Length of delay — Reasons for delay — Counsel error or inadvertence — Prospects of success — Prejudice — Whether court should exercise its discretion to grant the intended appellant's application to extend time for filing appeal — Section 11 of the Court of Appeal Act — Rules 9 and 11 of the Court of Appeal Rules

On 27 September 2018 the intended appellant (“Navette”) was refused leave in the court below to apply for Judicial Review. Navette promptly filed its Notice of Appeal on 11 October 2018, within the fourteen (14) day time-frame prescribed by rule 11 of the Court of Appeal Rules (“the Rules”). However, as per section 11 of the Court of Appeal Act (“the Act”), Navette required leave to appeal from this Court or the court below. Navette, due to the inadvertence of counsel, filed the appeal without having obtained the required leave. The procedural error was only discovered when the intended respondent moved to strike out the Notice of Appeal. Within days of the service of the strike-out application the intended appellant filed the necessary application in the Supreme Court to secure the requisite leave. After a fiercely contested hearing, leave to appeal was ultimately granted. By that time Navette's appeal was out of time and Navette filed an application for an extension of time in the Court of Appeal. The extension of time application was once again vigorously opposed by the intended respondent on the basis of long delay, prejudice to the intended respondent and the absence of merits of the intended appeal. The Court reserved its decision.

Held: Application to extend time to appeal granted. No order as to costs.

On an appeal from an interlocutory order rule 11 of the Rules provides that the Notice of Appeal shall be filed and served within 14 days and section 11(f) of the Act places a restriction on civil appeals, providing that no appeal shall lie without the leave of the Supreme Court.

On an application for an extension of time under rule 9 of the Court of Appeal Rules the Court, in exercising its discretion, will consider four factors: (i) the length of the delay; (ii) the reason(s) for the delay; (iii) the prospects of success of the intended appeal; and (iv) the prejudice to the intended respondent.

In the present case the 9 month delay was inordinate and required a reasonable explanation from Navette to overcome it. The reason for the delay was because Navette's attorneys failed, through obvious inadvertence, to obtain leave to appeal as required before filing the now aborted Notice of Appeal. The genuine nature of the mistake is evident from the promptness with which Navette moved to rectify the situation after the procedural blunder was discovered. The Court is satisfied that the reasons for the delay proffered by Navette are not unreasonable nor wholly inexcusable. Regarding Navette's prospects of success, the intended appellant has a good prospect of success as Navette would undoubtedly have had the necessary standing to commence judicial review proceedings to vindicate its position. URCA has been unable to convince the Court that it would suffer any real prejudice should an extension of time be granted.

Madam Justice Crane-Scott, JA

Judgment delivered by The Honourable

Introduction and Background

1 . This is an application pursuant to rule 9(1)(a) and (2) of the Court of Appeal Rules, 2005 for an order extending the time within which to appeal a written ruling of Winder J., delivered on 27 September 2018 in which he refused to grant the intended appellant (“Navette”) leave to apply for Judicial Review.

2 . The intended appeal is from an interlocutory order. Accordingly, by rule 11(1)(a) of the Court of Appeal Rules, 2005 Navette was required to file and serve its appeal within fourteen (14) days from the date on which the judge's ruling was pronounced. Additionally, due to the restriction on civil appeals from interlocutory orders in section 11(f) of the Court of Appeal Act, Ch.52, (“the Act”) Navette was first obliged to obtain the leave of the Supreme Court (or of this Court) to appeal the judge's order.

3 . Following pronouncement of the judge's ruling, Navette promptly filed and served a Notice of Appeal on 11 October 2018 which was obviously within the prescribed fourteen (14) day time-frame for interlocutory appeals. However, the appeal was filed without Navette having also first obtained the required leave to appeal in the court below. Not surprisingly, the intended respondent (“URCA”) applied by Summons issued on 29 November 2018 to strike-out Navette's Notice of Appeal for non-compliance with the Act.

4 . Upon discovering its procedural error, Navette withdrew its Notice of Appeal in Civil Appeal & CAIS No. SCCivApp. 205 of 2018 and made the necessary application to the Supreme Court by Summons filed on 29 November 2018 for leave to appeal. Following a contested hearing before Winder J., Navette obtained leave to appeal on 8 July 2019. By then, the 14-day period for interlocutory appeals had long expired. Ultimately, four (4) days after obtaining leave to appeal, Navette filed the necessary application in this Court seeking an order extending the time for appealing the judge's ruling.

5 . The application was heard before us on 9 December 2019 and was strenuously opposed by URCA. After hearing the contending arguments, we reserved our decision. We have allowed Navette's application to extend the time for appeal. Our reasons for so doing appear below.

The Application

6 . The application was initially supported by the affidavit of Roberta Quant (also filed on 12 July 2019) giving details of the fact that the now aborted appeal from the interlocutory ruling of Winder J., had been filed and served in time but had been subsequently withdrawn due to the procedural error of Navette's attorneys outlined earlier.

7 . By the time the application came on for hearing, Navette had filed two additional affidavits. These were an affidavit of Mia D. Campbell filed on 20 November 2019 and an affidavit of Vann Ferguson filed on 5 December 2019. The latter affidavit, in particular, amplified the reasons for Navette's delay in filing the application, set out the likely prospects of success of the intended appeal, attached relevant exhibits and responded to URCA's assertion that it would suffer prejudice if the application were acceded to.

8 . Vann Ferguson's affidavit of 5 December 2019 contained the following averments:

• “1. I am a Director and President of the Appellant herein and make this affidavit in support of the Appellant's application upon its Notice of Motion filed herein for an extension of time to appeal.

• 2. Based upon the Respondent's arguments made herein thus far it is clear that they oppose the Appellant's application that the Court exercise its discretion to extend the period within which the Appellant's appeal ought to have been filed. However, the Appellant demonstrated, and duly communicated, its intention to appeal the decision of the Court below by the prompt filing of its Notice of Appeal in Civil Appeal No. 205 of 2018, on the 11 ^th day October AD. 2018, which was duly served on Counsel for the Respondent on the same day. Copies of the Appellant's said Notice of Appeal and the Affidavit of Service filed with respect thereto are exhibited hereto and marked “VF-1”. Unfortunately, due to the procedural error discovered regarding the Appellant's failure to secure leave from the Court below prior to filing the said Notice of Appeal the Appellant was constrained to discontinue its said Appeal. However, the draft Notice of Appeal before the Court herein is in precisely the same terms as the Appellant's original Notice of Appeal in Appeal No. 205 of 2018, which the Respondent has been in possession of since the 11 ^th day of October AD. 2018, fourteen (14) days following the decision the subject of this Appeal.

• 3. Upon discovery of our procedural error, the Appellant proceeded promptly to secure the requisite leave from the Court below, which was granted, after a fiercely contested hearing, on the 8 ^th day of July AD. 2019, following which the Appellant promptly filed its Notice of Motion seeking leave to appeal...